Two full days we have seen both houses of Parliament Lok Sabha first and then Rajya sabha only really animated debates over the new Waqf law. The new Waqf bill or Waqf which has now become an act which will become act after the president signs it’s been passed by both houses of Parliament. This has been a very impassioned animated debate and you can see it’s been a very polarizing issue. Now you’ve been watching this very very wise people from both sides have spent nearly 20 hours debating it, however we can say that in spite of how convincing each one’s arguments might have been in their own mind and in their own hearts more importantly it will not convince the other side. Because this is a divisive issue and it’s a very very polarizing issue there are people who believe that the earlier law was bad that was a case of appeasement of a minority there are those who say that this new law is unfair to a minority India’s largest minority and also it is meant to at the very least troll them and irritate them and more substantively to target them and to reduce their power and to diminish their religious institutions. The freedom of which is guaranteed by several sections of several articles of our constitution 14 ,15, 25, 26 several sub Clauses of 26 and so on, so that is the larger argument. It is not possible to delve into such an extent that we can say what is good and what is bad. That is also not the primary focus of us. All we can do is just bring your attention here and give you the Clarity on what are the arguments on both sides. What is going to change with the law, what is the existing situation and what are each side’s points so first of all what is the basic issue ? in the Islamic system and Islamic tradition there is the tradition of Waqf; Waqf simply means it can mean ‘to restrict’ it can mean ‘to end’ it can be ‘restrict’ and ‘devotion’ which means something that you give away to waqf is ceases to exist as anybody else’s property or belonging and it is given to devotion. To understand this, there is a very good one and a half minute video that we found on the Waqf Foundation or Oka Foundation of the United Kingdom so we will share a link with you to see that, that is the clearest definition. What it also does is that anything that you give away, anything that you give away is gone forever you can never claim it back plus the spirit of this giving is such that what you’ve given should be like a Perpetual charity because you can’t take it, someone else can’t take it. So this should continue to serve the purpose for which it was given, so Waqf is like a Perpetual donation you’ve given it forever and it will keep on yielding income for the purpose for which it was meant.
In Arabic the concept is ‘Sad Ka Jaria’ which means like continuing charity or an Ever flowing charity, in fact there are many reference to charity in the Holy Quran but there is one in particular of which we will give you a short truncated translation; which says when a man dies only three deeds will survive him : One continuing arms that is Charity, Second profitable knowledge the knowledge that he created that will survive him and will be used will be of benefit to Future generations and third a child who prays for him so those are the three things that matter. Charity has been put as first of these three deeds, and the charity goes to the Waqf organization and the controller is a ‘Mutawalli’ is like the custodian who looks after your donation and makes sure that your donation is used for the right purposes and then to manage it in perpetuity. There are Waqf organizations that show how old the tradition is. Amit Shah in his speech in fact there were many impressive speeches you can see you can hear Amit shah. Amit shah and Kiran Rijiju on the side of the government backing the law you can also watch a Asaduddin owaisi who’s actually delivered a very impassioned speech, at the end of which he said I’m tearing off this law just as Gandhi had to torn away the racist law in South Africa so just as Gandhi said I reject that law I am saying that I reject this law. Speeches of Manoj Jha of RJD and some of the others opposing the bill you can see as well so that you can make up your own mind.
In Amit Shah’s speech he said that this tradition of Waqf he said that “ This goes back to the to Khalif Omar’s times Khalif Omar was the
Second Rashidun Khalifa, and was a contemporary of Prophet Muhammad in fact a little bit younger than Prophet Muhammad. Prophet Muhammad was born in 570 AD Khalif Omar was born in 584 AD, initially he was in an argument with Prophet Muhammad and then he became Muslim. It is he in whose times this tradition of Waqf began and the tradition is drawn from the Hadees/ Hadith or the Hadith, now Hadith are not part of the Quran, Hadith are stories/ happenings which are verbally, mostly orally recounted by one generation to
the other, then over time they are studied by Scholars. These have then been qualified as good not okay and bad and then later these have been codified as laying down the Sharia law so this is the next most important source of Islamic theology or Islamic practice after the Holy Quran. Amit Shah said correctly that the Waqf tradition or the Waqf tradition Waqfis Waqfis are plural for Waqf that goes back to the era of the second Calif second rashidun Calif, Calif Omar. Amit Shah said that in India this tradition came in the Ghorit times (that is in Md ghori’s time) or thereabouts and since then it continued and then he said that once we came to the 19th century initially there was an 1863 British era act which was the religious endowments act that governed all the religious endowments in India, just six years after in 1857 and 6 years after the crown taking over the rule of India. Then he said after that in 1890 a new law came in that was the charitable properties act again it covered all properties. In 1913 however a specific law was made for Waqf Properties and then that law evolved in 1937 the law codifying the Sharia act that was passed. Then in 1954 under Nehru again the Wakf Act was passed which was further amended in 1995 was effectively a new law now you have to go back to 1995 and understand what period that was ? That was the period Narshima Rao was in power, that is when Muslims were very angry after the destruction of the Babri Masjid and Narashima Rao’s government did many things to assuage them it was in that period that a new Waqf Act was also passed. There was some compulsion to do so because over time the Waqf properties had gone into disrepair and many had been encroached. Indra Gandhi had written about it in a letter to the Chief ministers on 26th March 1976, you can find that letter in the Sachar committee report (Remember UPA had set up a Sachar committee, Justice Sachar committee to look at the to examine the conditions of Muslims in India). She also said that too much of it has been engrossed and a lot of these Waqf properties are where government buildings and installations are sitting. So it is impossible to demolish those buildings and hand these lands back, so at least start giving a reasonable rent for these and even if you face the limitations of Rent control act (There was an ERA in the license quota Raj when even rents were fixed by the state). That led to so many shortages and other mess and ultimately so much of the disaster in our cities but that is something that we’ll talk about later in that letter she says that where possible please relax the Rent control act so the Waqf bodies can get more rent for these properties. Purpose of the Waqf was actually to use these properties or use these assets. It can be property, it can be jewelry, it can be cash, it can even be a car, anybody can donate anything to Waqf. The purpose of a Waqf institution is to use it for charity, the purpose for which it is meant.
However to cut the long story short the 1995 law gave some very sweeping powers to the Waqf bodies. This was the 1995 law not the earlier law; those Powers then got further strengthened and actually made very strong in the last months of the UPA government. They carried out another bunch of amendments in the 1995 law. Amit Shah said for those amendments “ it would not have been necessary to bring out this particular law” now what these 2013 amendments read with the 1995 work fact, what they said was they actually gave total power to Waqf boards or Waqf bodies to declare any property as Waqf Property. Anybody could say that the house where I live and where I’m recording this from is a Waqf property, that was the intent and that was the outcome of those sections. There was section 40 of that law red B red B say section 6 if you read section 40 with Section 6 one empowered The Waqf board to declare any property as Waqf property, then if I got agreed that this is my house how can you call it Waqf property ? Where would I go to appeal I would go and
appeal to the Waqf tribunal ? If it is the case then the Waqf tribunal’s decision was then final. I would not be able to challenge it in a civil court. I can still challenge it legally but it’ll be challenged under the WRIT jurisdiction then I’ll have to file a WRIT against this and WRIT has limitations. WRITs don’t apply everywhere then I have to go to the high court right away, so that became the final court of appeal. First the Waqf board said the earlier Waqf board or the existing Waqf board that this is not your home this is this is our Waqf property then I went in appeal to a tribunal, tribunal said “no no you are wrong this is actually Waqf property” then if I still contested it I had to go in a WRIT in a WRIT petition to a high court which was quite onerous. The other thing with this was that all members of the Waqf board and the Waqf tribunal had to be Muslim. So that is the bjp’s argument.
These amendments gave this tribunal and Waqf board jurisdiction also over non-muslims which they wanted to rectify, now besides also making these bodies judicially accountable so any body agreed could also seek judicial accountability or a judicial review of the situation. After the appeal a judge could then decide who’s right, who’s wrong whose property it is ?
Another thing is that the ‘statute of limitations’ (the Waqf boards or the Waqf or the Waqf law as it existed earlier in the limitation Act of 1963) did not apply. What is the limitation Act of 1963 ? that is if you have a civil dispute , let’s say on a property you can go and address it you can seek redressal in a court of law. Within 12 years if you haven’t done anything you lost your case so there’s a 12 year limitation you have to do it within 12 years. In the case of Waqf law or Waqf boards there was no such limitation they could make these claims without any time limit 12 years, 24 years, 36 years whatever number of years , however the Aggrieved party had to protest or file their protest within one year they could. So there were limitations on one side and a very severe limitation on one side and no limitation on the other side.
What does the new law do? The new law says there will be Waqf boards and Waqf councils both of which will be fully populated by Muslims. Now the doubters or those who are concerned particularly on the Muslim side said that “you will pack these with Hindus , Christians all the others so Muslims will lose their freedom under article 14,25, 26 ABC etc etc to conduct their own religious affair so you are taking that constitutional Freedom away from the Muslims. Government says the Waqf organization the Waqf itself the Motwali and the Waqif, ‘Waqif’ is the person who donates to Waqf all of them are Muslim they will never be a non-muslim with any of this.
We are giving you both arguments Owaisi said “ this is nonsense you want to pack these with non non-muslims so you take away my freedoms under article 14 15 25 26 and so on and so forth”
The government argument which Amit Shah puts out is that “ Motwali who’s the custodian of this property or his donation is also a Muslim then Waqf itself that manages this is also consisting of all Muslims however Waqf board and the Waqf Council. The new Waqf board which will be set up at the state level now and the Waqf Council which will be Central will have some non-muslims, about two non-muslims. However the majority will be Muslim the law says that even the chief executive of these boards and the central Council can be a non-muslim, now to which the argument from the Muslim side and the opposition side. The Muslim side argument is that how can you put non-muslims into these bodies because ultimately these bodies would be adjudicating on a traditional Muslim practice and traditional Muslim Charities ? to which the government’s reply from Amit shah again that is the most succinct government
18:16 – reply that is “ Don’t you have trust? you can have a Jain trust, a Hindu trust, a Sikh trust, any such trust. All those trusts are fully composed of people of that faith they can be a Parsi trust so in that trust there will be only Parsis however every state has a Charities commissioner. Charities commissioner oversees all the trusts that their activities are all right their accounts are all right there is no corruption, there is no wastage that they are all sticking to their purpose of their Charter of objectives Etc and he says has anybody ever said that your Charities commissioner can only be Hindu or can can only be Muslim or can only be Sikh ? if you take it Forward what will happen I’m giving you arguments and he says if you take it Forward what will happen that means if you have a Muslim Charities commissioner that Charities commissioner cannot look at Hindu Charities and vice versa. It sounds a bit rhetorical in the way that he’s put it but this is the argument obviously the other side is not convinced. Because the other side is not convinced of the intentions of the
government under the new law.
If you see Mrs. Gandhi’s letter and also a chapter on Waqf issues in such a committee report that is Page 238 in such committee report that chapter also talks about the fact that the Waqf properties have not been looked after very well many have been lost many have been encroached upon and many have been sold illegally or have been rented at throwaway prices and such a committee also reports at that period that even in terms of Book value which will be a fraction of the real value at that point just the properties owned by the Waqf in Delhi. In Delhi the value of waqf property was then worth 6,000 crore, and their income was just 163 crores which is 2.7% but again 2.7% only on the book value out of that 7% the work board can keep for its own upkeep its salaries etc, rest has to be spent on charity on the purpose for which these lands were donated that is too little so there is need to free up these properties so more money can be raised. If these assets can be monetized a lot better could happen so the purpose of Charity is served much better.
So what has changed now number one the Waqf will function like a trust that will have only Muslims they will be a body overseeing within the Waqf system. These Waqf members in that Council also will be all Muslims this however will be further overseen by a state level Waqf board in which there can be two non-muslim members majority will be Muslim. The chief executive can be a non-muslim. When their amendments came in, some members, particularly BJP allies, wanted to raise the level of the officer level of the officers who will be members of this body. The law now says this body will also have two women and people from Bori and other communities who are usually not observant of Islamic practices in the same way that traditional say Sunni Muslims are so Shia Muslims Boris and some more will be given representation in that body at the top that is not the body managing the Waqf Property on the ground. The decisions of all these bodies will then be exposed to judicial oversight so it’s not as if this will be one Divine body whose order will be final you will be able to challenge it judicially in a civil court that is the big change then there will be a survey there will be a nationwide survey of all
Waqf properties this was also meant to be done under the earlier law which was never done in reality. Now the original draft of the law said that the collector or the Deputy Commissioner will carry out the surveys but with an amendment. A TDP member asked that it’s not been decided that this will be a designated officer higher or more senior to the Deputy Commissioner.
Then the question remains can a property become a Waqf Property by use. It is important to understand what do you mean by Use a mosque may be standing on a piece of land for a 100 years but there may not be documentation that land was given by somebody in donation to Waqf then what happens ? So by use under the existing law ‘by use’ means since I’ve been sitting on this land this mosque is there the example that’s been mentioned often is a mosque that stands right in front of Parliament House that conforms to this description. In fact one of the objections from the BJP side is that after the 2013 amendments 123 properties in Lutyens Delhi were handed over to the Waqf board and these were all very highly valuable properties including properties of Northern Railway. That is again something that has been made arguable a challenge to this has been made arguable under the new law.
An important change is that only a Muslim can make a Waqf donation. That wasn’t the case earlier. Now a non-muslim cannot make a Waqf donation and even if a Muslim or maybe a new convert makes a Waqf donation that Muslim has to have been in the Muslim faith for at least 5 years. Now how will you find the evidence that somebody has been Muslim for 5 years but not 5 months or 5 days? That’s the question. Asaduddin Owaisi also raised the question “how will you determine when somebody became a Muslim by checking their beard ?” These are questions that the opposition is Raising and that’s got the Muslim side really feeling insecure because they think that this is an encroachment into what was so far entirely their domain which they handled within their faith and within the institutions of their faith.
The argument from the government side would be that ‘so many Hindu temples have been taken over by the government and those are being run by endowments controlled by the government and managed by Chief Executives who are government bureaucrats then the opposition would say in that case why don’t you allow Muslims to be on the boards or Muslims to be on the board of Hindu temples. The counter argument will come that the charity commissioner or the secretary in the state who’s in charge of all endowments can be of any faith and that’s the distinction we are now creating. We are creating multiple levels of the management of Waqf Properties. So all these issues were coming up because there was no statute of limitations.
